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More Surveillance Equals Less Liberty

Now that two years have passed since the trauma of
the Sept. 11 catastrophe, it is a good time to take a step back
from the politics of the moment and take stock as to how our
policymakers have responded to the threat posed by terrorism.

Sending American soldiers to Afghanistan was a decisive move by
President Bush — because it was going right to the root of the
problem, which is Osama bin Laden, his elite henchmen and his
training camps.

The war on the home front also has been aggressive but in many
ways misguided. The assumption has been that there was simply too
much liberty and privacy in America - and that federal
law-enforcement agencies did not have enough power. To remedy that
perceived problem, policymakers rushed the USA Patriot Act into
law.

The Patriot Act was designed to reduce privacy and increase
security. It has succeeded in at least reducing privacy.

Financial privacy is essentially gone. The feds have turned
banks, brokerage houses, insurers and other financial institutions
into state informers. Those firms must notify the Treasury
Department about “suspicious” transactions, and the government can
subpoena your checking-account records even if there is no evidence
of wrongdoing.

Even though the feds were notified about several of hijacker
Mohammed Atta’s financial transactions before Sept. 11, no action
was taken.

But in the logic of the public sector, that failure means the
government was hobbled by insufficient money and insufficient
power. Thus, the Treasury Department is now engaging in more
surveillance.

Attorney General John Ashcroft says that all of the “safeguards
of our Constitution” have been honored. But the Constitution’s most
vital safeguard is the principle of the separation of powers, and
it has been undermined repeatedly.

One of the most odious provisions of the Patriot Act is known as
Section 215.

That provision empowers FBI agents to demand things from people
in terrorism-related investigations.

Ashcroft and conservative analysts claim that the Patriot Act
operates in a similar fashion to ordinary search warrants so there
is nothing to worry about. Heather MacDonald of the Manhattan
Institute, for example, says, “The FBI can do nothing under Section
215 without the approval of a federal court.”

In truth, the act creates a facade of judicial review. Here is
the pertinent language: “Upon an application made pursuant to this
section, the judge shall enter” the order.

That was crafty. Instead of enacting a law that says whenever an
FBI agent wants to demand something from someone, he can do so as
long as he is following leads in a terrorism investigation, the
Patriot Act accomplishes the same end indirectly. The FBI can now
use boilerplate forms and submit them to federal magistrates, who
“shall” approve the applications.

The judicial check is not there. The judiciary cannot scrutinize
the foundation for the Justice Department applications.

The impression is, in any event, false. The FBI can use Section
215 to obtain personal belongings — anything, really — directly
from a person’s home.

To top it all off, Section 215 has a gag provision that
criminalizes speech about 215 orders. So if the CEO of a
telecommunications firm finds that his company is spending a
million dollars a year to comply with Section 215 orders and wants
to complain to Congress, he better not make that call or send that
letter. Leavenworth awaits such a move.

The courts are not likely to abide by that blatant restriction
of free speech, but it may take years for a definitive ruling on
the subject.

In the meantime, only the FBI knows how many people will have
been cowed into silence by 215.

Too many conservatives have brushed aside grievances about
civil-liberties violations in the mistaken belief that President
Bush’s political opponents are simply trying to dress up a partisan
attack in noble-sounding rhetoric about liberty, privacy and the
Constitution. The opposite is true.

President Bush and Attorney General Ashcroft have given their
political opponents a just cause — namely, resisting the growth of
a surveillance state.